United States District Court, D. North Dakota
ORDER GRANTING DEFENDANT'S MOTION TO VACATE, SET
ASIDE, OR CORRECT SENTENCE
L. HOVLAND, CHIEF JUDGE.
Defendant is serving a 180-month sentence for possession of a
firearm and ammunition by a convicted felon. On June 7, 2016,
the Defendant filed a “Motion to Vacate under 28 U.S.C.
§ 2255 (Johnson Claim).” See
Docket No. 53. The Defendant's motion is based on the
United States Supreme Court's holding in Johnson v.
United States, 135 S.Ct. 2551 (2015). After an initial
review of the motion, the Court ordered the Government to
file a response. On July 5, 2016, the Government filed a
response in opposition to the motion. See Docket No.
57. The Defendant filed a reply on July 18, 2016.
See Docket No. 60. The Government filed a
supplemental response on July 26, 2016. See Docket
No. 64. The Defendant filed a reply to the Government's
supplemental response on August 22, 2016. See Docket
No. 65. For the reasons set forth below, the motion is
19, 2012, a federal grand jury indicted Nilsen on one count
of possession of a firearm and ammunition by a convicted
felon, in violation of 18 U.S.C. §§ 922(g)(1),
924(a)(2), and 924(e). See Docket No. 1. On October
30, 2012, Nilsen entered an open guilty plea to the one count
indictment. See Docket No. 33. A sentencing hearing
was held on April 24, 2013, at which time it was determined
that because Nilsen had two prior burglary convictions, two
prior criminal trespass convictions, and an aggravated
assault conviction, he qualified as an armed career criminal
under the Armed Career Criminal Act (“ACCA”), 18
U.S.C. § 924(e). See Docket No. 47. The
Court's finding that Nilsen was an armed career criminal
triggered a mandatory minimum sentence of 180-months. The
advisory Sentencing Guideline range was determined to be
168-210 months. See Docket No. 49. The Court
sentenced Nilsen to the mandatory minimum 180-months in
prison and 36 months of supervised release. See
Docket No. 48. No appeal was taken.
7, 2016, Nilsen filed a Section 2255 motion citing the recent
opinion of the United States Supreme Court in Johnson v.
United States, 135 S.Ct. 2551 (2015), as the basis for
the motion. Nilsen contends that in the wake of
Johnson, he no longer qualifies as an armed career
criminal. Nilsen's prior convictions, which resulted from
guilty pleas, are as follows:
1) Criminal Trespass, in Williams County (ND) District Court,
Case No. 04-K-880, on or about December 20, 2004. Class C
felony. This offense was committed on October 17, 2004.
See Docket No. 36-1.
2) Burglary, Williams County (ND) District Court, Case No.
06-K-0986, on or about December 27, 2006. Class C felony.
This offense was committed on August 8, 2006. See
Docket No. 36-2.
3) Burglary, Williams County (ND) District Court, Case No.
06-K-0987, on or about December 27, 2006. Class C felony.
This offense was committed on August 8, 2006. See
Docket No. 36-3.
4) Aggravated Assault, Williams County (ND) District Court,
Case No. 06-K-0951, on or about December 27, 2006. Class C
felony. This offense was committed on August 8, 2006.
See Docket No. 36-4.
5) Criminal Trespass, in Morton County (ND) District Court,
Case No. 30-10-K-312, on or about April 26, 2010. Class C
felony. This offense was committed on April 4, 2010.
See Docket No. 36-5.
Government concedes the two criminal trespass convictions no
longer qualify as “violent felony” convictions
because the Johnson decision declared the residual
clause of the ACCA to be unconstitutional, and the offenses
do not qualify as a “violent felony” under any
other section of the ACCA. The Government maintains
Nilsen's two burglary convictions still qualify as 924(e)
predicates under the “enumerated offenses clause”
of the ACCA and his aggravated assault conviction qualifies
under the “force clause” of the ACCA. The matter
has been fully briefed and is ripe for a decision.
STANDARD OF REVIEW
U.S.C. § 2255 provides a federal prisoner an avenue for
relief if his ‘sentence was imposed in violation of the
Constitution or laws of the United States, or . . . was in
excess of the maximum authorized by law.'” King
v. United States, 595 F.3d 844, 852 (8th Cir. 2010)
(quoting 28 U.S.C. § 2255(a)). This requires a showing
of either constitutional or jurisdictional error, or a
“fundamental defect” resulting in a
“complete miscarriage of justice.” Davis v.
United States, 417 U.S. 333, 346 (1974); Hill v.
United States, 368 U.S. 424, 428 (1962). A 28 U.S.C.
§ 2255 motion is not a substitute for a direct appeal
and is not the proper way to complain about simple trial
errors. Anderson v. United States, 25 F.3d 704, 706
(8th Cir. 1994). A 28 U.S.C. § 2255 movant “must
clear a significantly higher hurdle than would exist on
direct appeal.” United States v. Frady, 456
U.S. 152, 166 (1982). Section 2255 is “intended to
afford federal prisoners a remedy identical in scope to
federal habeas corpus.” Davis, 417 U.S. at
case involving an ACCA conviction based on Johnson,
“the movant carries the burden of showing that the
Government did not prove by a preponderance of the evidence
that his conviction fell under the ACCA.” Redd v.
United States, No. 4:16-CV-1665, 2017 WL 633850, at *2
(E.D. Mo. Feb. 16, 2017) (quoting Hardman v. United
States, 149 F.Supp.3d 1144, 1148 (W.D. Mo. 2016)). The
movant need not show he was sentenced under the residual
clause to maintain a Section 2255 claim under
Johnson. United States v. Winston, 850 F.3d
677, 682 (4th Cir. 2017) (noting sentencing judges are not
required to specify under which clause of 18 U.S.C. §
924(e)(2)(B) an offense qualified as a violent felony). A
movant may rely on the new rule of constitutional law
announced in Johnson if his sentence may
have been predicated on the now void residual clause.
Section 2255 motion, the determination of whether a prior
conviction qualifies as a predicate violent felony under the
ACCA is subject to de novo review. Winston,
850 F.3d at 683; In re Chance, 831 F.3d 1335,
1338-39 (11th Cir. 2016). The court's review is not
constrained to the law as it existed when the movant was
sentenced, but should be made with the assistance of binding
intervening precedent which clarifies the law. In re
Chance, 831 F.3d at 1340; Winston, 850 F.3d at
683-84 (applying intervening case law); Redd, No.
4:16-CV-1665, 2017 WL 633850, at *4 n. 3. (noting decisions
which clarify or apply existing law or a settled rule apply
on collateral review). The burden remains on the movant to
show that his sentence, in the wake of Johnson, is
no longer authorized by the ACCA. In re Chance, 831
F.3d at 1341.
ACCA's 180-month mandatory minimum penalty applies when a
defendant has at least three prior felony convictions for a
“serious drug offense” or a “violent
felony, ” as defined in 18 U.S.C. § 924(e)(2).
Absent the armed career criminal finding, the maximum
sentence for being a felon in possession of a firearm is ten
(10) years. See 18 U.S.C. § 924(a)(2). The ACCA
defines “violent felony” as follows:
(B) the term “violent felony” means any crime
punishable by imprisonment for a term exceeding one year, or
any act of juvenile delinquency involving the use or carrying
of a firearm, knife, or destructive device that would be
punishable by imprisonment for such term if committed by an
(i) has as an element the use, attempted use, or threatened
use of physical force against the person of another; or
(ii) is burglary, arson, or extortion, involves use of
explosives, or otherwise involves conduct that
presents a serious potential risk of physical injury to
18 U.S.C. § 924(e)(2)(B) (emphasis added). The portion
of this definition in bold is known as the “force
clause” or “elements clause.” The
underlined portion of this definition is known as the
“enumerated offenses clause.” The italicized
portion is known as the “residual clause.”
Johnson, the United States Supreme Court held the
residual clause of the ACCA was vague, and the application of
the residual clause violates the Constitution's guarantee
of due process. Johnson, 135 S.Ct. at 2563. The
holding of Johnson applies retroactively on
collateral review. Welch v. United States, 136 S.Ct.
1257, 1268 (2016). However, the holding in Johnson
does not apply to the advisory federal Sentencing Guidelines.
Beckles v. United States, 137 S.Ct. 886, 895 (2017)
(holding the Sentencing Guidelines are not subject to a void
for vagueness challenge under the Fifth Amendment Due Process
Clause). Therefore, the residual clause no longer provides a
basis for qualifying a prior conviction as a “violent
felony” under the ACCA.
crimes listed in the enumerated offense clause refer to the
generic version of the offense, and not to all versions of
offenses. See Taylor v. United States, 495 U.S. 575,
598 (1990); Mathis v. United States, 136 S.Ct. 2243,
2248 (2016). In order to determine if a prior conviction
qualifies, courts apply the “categorical
approach.” Taylor, 495 U.S. at 600;
Descamps v. United States, 133 S.Ct. 2276, 2281
(2013). The categorical approach requires comparing the
elements of the offense of conviction to the elements of the
generic offense. Taylor, 495 U.S. at 600;
Descamps, 133 S.Ct. at 2281. The particular facts
underlying the prior conviction are not considered.
Taylor, 495 U.S. at 600. The prior conviction
qualifies only if the elements of the offense are the same or
narrower than ...